Wanita MCA chief Datuk Heng Siai Kie was recently quoted as saying that it was regrettable that I had defended serial rapist Selva Kumar Subbiah and dismissed its proposal to charge him a second time for the offences he was convicted of in Canada here in Malaysia upon his return (‘Wanita MCA: DAP MP’s ‘defence’ of serial rapist regrettable’, Malaysiakini, 6.2.2017).
Heng was further quoted as saying that it was regrettable that I had “depicted the wing’s call for a sex offender’s registry to safeguard “would-be victims” of convicted rapist Selva Kumar Subbiah as a contravention of the Federal Constitution”. (“Heng: Preventing sex crimes needs strong bipartisan effort”, The Star Online, 6.2.2017). The said article further reported, “She (Heng) said he (me) missed the point about enacting laws so that Malaysians who committed sex offences must face charges back home”.
I am unable to understand how Heng reached her said conclusions above.
A proper reading of my statement, which Heng criticised, would reveal that I did not, at any time, defend Selva or “depict” the implementation of a sex offender’s registry as being in contravention of the Federal Constitution. The entire text of my said statement is reproduced here for Heng’s attention in the hope that she reads and understands its contents before making such unfounded criticisms:
“The statement by Wanita MCA chief Datuk Heng Seai Kie that the principle of double jeapordy ought not to apply to sex offenders (pg 3, The Star, 4.2.2017) is a suggestion that cannot be accepted and must be addressed at once.
Heng’s said suggestion was understandably made at the height of the controversy surrounding the return of convicted Malaysian rapist Selva Kumar Subbiah from Canada which has sparked nationwide concern as to the measures that ought to be taken to prevent sex offenders from reoffending. She was further reported to have said, “although they have served time behind bars abroad for offences committed overseas, they must face similar charges and conviction on home soil.”
There can be no doubt that sexual offences are possibly the most heinous of crimes which ought to be severely punished but Heng’s suggestion cannot be entertained as same flies in the face of Article 7 (2) of the Federal Constitution which reads:
“A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.”
The above is a constitutional guarantee that no one can be tried for the same offence twice which has come to be known as the rule against double jeapordy or autrefois acquit or autrefois convict which means “previously acquitted or convicted”, as the case may be, for a particular offence, in which case, a person cannot be tried for it again.
Abolishing the rule against double jeapordy for any offence is dangerous as this may be abused and may result in repeated convictions on offenders for the same offence with no end in sight.
As the rule against double jeapordy is a constitutional guarantee as outlined above, Heng’s suggestion would necessarily require a constitutional amendment in order to see the light of day.
Heng and the MCA should concentrate on efforts to avoid the recurrence of sexual offences such as, perhaps, the introduction of a national registry of sex offenders or placing tracking devices on repeat offenders to ascertain their whereabouts. There can be no doubt that all parties, regardless of political affiliation, would be united in such a cause but demanding the abolishment of the rule against double jeapordy is certainly a step in the wrong direction.”
It is to be stressed that nowhere in my said statement did I defend Selva nor did I object to the introduction of a sex offenders registry.
All I said was that a person cannot be convicted or acquitted twice for the same offence as this contravenes the rule against double jeopardy which is guaranteed under Article 7 (2) of the Federal Constitution. I was merely stating the law!
It is my respectful view that a person ought not to be convicted twice for the same offence. That is a constitutional right of any person in this country. By criticising my said stance, Heng is actually criticising the Federal Constitution on this score. Is Heng condemning the Constitution as well in this regard?
On Heng’s criticism of me allegedly not criticising PKR Wanita chief Zuraida Kamaruddin for adopting the same stance as her, if Zuraida is of the view that sex offenders ought to be punished twice for the same offence (Heng’s view), I would similarly criticise Zuraida’s said view as well for the simple reason that the same is unconstitutional regardless of Zuraida’s political affiliation.
As for Selangor DAP assemblywoman Yeo Bee Yin’s stand on the matter, it is obvious that her criticism was in relation to the delay on the part of the government in implementing a sex offender’s registry and has nothing to do with the issue of double jeopardy. All Yeo did was to urge for the introduction of such a registry to be expedited for the purpose of registering people like Selva thereon regardless of whether their offences were committed here or abroad. I am unable to detect any indication in Yeo’s statement that advocated the abolishment of the rule against double jeopardy as Heng does and as such, the question of ‘rebuking’ Yeo as suggested by Heng does not arise!
The point which Heng seems to have missed is that a convicted sex offender ought to be registered on a sex offenders register here (if and when it is introduced) regardless of where he was convicted. As such, I am unable to see the need to obtain a new conviction here for the same offence committed overseas in order for the said offender to be registered on the said sex offenders register here as Heng seems to suggest. In other words, I cannot see why there is a need to even propose the abolishment of the rule against double jeopardy in the first place.
Finally, I wish to state that it is clear from the final paragraph of my statement above that I did not, at any time, dismiss the introduction of a sex offenders registry in this country. On the contrary, a perusal of the said paragraph makes it clear that I had in fact suggested that all parties, regardless of political affiliation, would be united in the introduction of such registry and other measures to prevent sex offenders from reoffending such as placing tracking devices on repeat offenders to ascertain their whereabouts. It is obvious that I had proposed the same in the interest of safeguarding potential would-be victims of those convicted of sexual offences.
Hengs’s criticisms of my views on this issue are indeed unwarranted and do not reflect my statement above. Her inability to differentiate between the need for a sex register and the abolishment of the rule against double jeopardy is most regrettable and unfortunate.